Scott v. Gray

• Decision Date: 11 July 1960
• Docket Number: No. 1,No. 47779,47779,1
• Citation: 337 S.W.2d 38
• Parties: Louise M. SCOTT, Appellant, v. Howard GRAY, Respondent
• Court: Missouri Supreme Court

Page 38

337 S.W.2d 38

Louise M. SCOTT, Appellant, v. Howard GRAY, Respondent.

No. 47779.

Supreme Court of Missouri, Division No. 1.

July 11, 1960.

Roy Coyne, Joplin, for appellant.

Robert E. Seiler, Joplin, for respondent, Seiler, Blanchard & Van Fleet, Joplin, of counsel.

DALTON, Judge.

Action for $51,000 for personal injuries and property damages alleged to have been sustained by plaintiff when an automobile operated by defendant collided with an automobile operated by plaintiff in a street intersection in Joplin, Missouri. Verdict and judgment were for defendant and plaintiff has appealed.

The collision occurred about 5 p. m., May 22, 1957, as defendant was driving east on Second Street and plaintiff was driving north on Pearl Avenue, crossing Second Street, which is an east-west through street paved with brick. There are stop signs on each side of Second Street where Pearl Avenue crosses. Both streets are 40 feet wide from curb to curb. The next north-south street west of Pearl is Byers Avenue, which is 372 feet away, measured from center to center. An alley between Pearl Avenue and Byers Avenue is 190 feet west of Pearl Avenue. Plaintiff was driving her 1952 Ford automobile and defendant was driving a 1957 Oldsmobile, owned by one Wormington. It had rained recently and the pavement was wet. Second Street slopes east, down hill, at the place where Pearl Avenue crosses it.

Plaintiff, a member of the Jasper County Bar, was accompanied by Miss Helen Redding, also a member of the Jasper County Bar, by whom plaintiff was employed as a stenographer. As plaintiff was proceeding north on Pearl Avenue, she brought her automobile to a complete stop some three feet south of the stop sign for Second Street, which sign is located twelve feet south of the southeast corner of the intersection of Pearl Avenue and Second Street. There is a row of trees along the south curb line of Second Street west of the mentioned intersection and automobiles were parked at the south curb and, also, on the east and west sides of Pearl Avenue.

Plaintiff was driving in the second lane from the east side of Pearl Avenue. When she stopped, as stated, she looked west, but could see west on Second Street only about one fourth way to the alley on account of the cars and trees and because she was not 'in the clear.' She did not see any approaching traffic. Her companion, Miss Redding, testified that when the car started up, she (Miss Redding) could see to the west 'just about to the alley' and did not see any traffic approaching from the west on Second Street. Plaintiff had crossed the intersection many times and knew that Second Street was a through street, a protected stop street; and that about 5 p. m. was a busy time of day on account of going-home traffic. Plaintiff started forward slowly, in low gear. She continued to look for traffic on Second Street and her view improved as she moved forward. When she was even with the sidewalk on the south side of Second Street and the front of her car was at the curb line she could see west on Second Street to the alley, but did not see anything coming and she was still in low gear, traveling about 5 miles per hour. When she got out into the street, she could see to the next intersection to the west. She did not see anything approaching from the west. She was still going about 5 miles per hour when the collision occurred near the center of the intersection. Defendant's automobile struck the left door of plaintiff's car and plaintiff sustained severe and permanent injuries and her automobile was damaged.

Plaintiff had driven automobiles for 30 to 40 years. Her car was in good operating condition, the brakes and tires were in good condition and at 5 miles per hour she could have stopped in a very short distance, 2 or 3 feet. Concerning defendant's car, she said she 'never saw the car at all.' If she had seen it she would not have driven out in front of the oncoming car. She would have stopped. Since she did not see the car she did not apply her brakes before or after the collision. She did not see anything except there was a flash and crash all at once. At the moment of impact half of her car was in the northeast quadrant of the intersection and the other half was in the southeast quadrant and she was headed straight ahead still in low gear. Plaintiff did not know where defendant's automobile was when she was at the stop sign, or when she entered the intersection, or when she was half way between the south curb and the center of the intersection. When the accident happened she was not expecting it and still had her foot on the gas feed. She admitted that she had said in her deposition that parked cars and the trees on the south side of Second Street didn't interfere with her view to the west.

Immediately after the collision, plaintiff's car continued across Second Street, collided with the front of a car parked at the north curb and came to rest on the filling station property at the northeast corner of the intersection, 'almost up to the pumps.' A witness who heard the crash and came to the scene of the collision, saw two ladies one of whom he now recognized at the trial, and he heard a man who was standing on the north side of the larger car involved in the collision say: 'To be quite frank about it, I did not see the car.' Defendant's automobile came to rest near the center of the intersection 'headed sort of northeast.' There were two skid marks back of defendant's car. At the scene of the collision, the defendant told officer Don Riley that plaintiff pulled out in front of him and he saw the car 'almost on impact' and did not have time to do anything.

Defendant's testimony tended to show that he was Secretary-Treasurer and Manager of the Jobson Auto Body and Fender Works and he was returning to his shop after driving a customer home. At the time of the collision he was driving east at between 20 and 25 miles per hour. He was looking straight ahead and glanced to the right and left. He was driving on the right-hand side of Second Street in the lane next to the center of Second Street. He knew that Second Street was a through street, with stop signs at cross streets, including Pearl Avenue. When he first saw plaintiff's car, it was in motion, entering the intersection, accelerating, going north, with the south line of Second Street about bisecting the car. He also said it 'was past the south line of Second Street' when he first saw it. Defendant was then about 2 or 3 car lengths west of the west line of Pearl Avenue and was traveling 20 to 25 miles per hour. He also said he was 2 or 3 car lengths from plaintiff's car and the impact, driving 25 miles per hour, when he saw it. He estimated the length of his car at 18 feet. When he saw plaintiff's car, he applied his brakes as soon as he could react and he tried to swerve to the left to avoid the collision, but it was impossible to do so. The front of his car hit the left door of plaintiff's car. Plaintiff's car might have been a little south of the center line of Second Street when he hit it. He did not sound his horn and did not have time to do anything, except to apply his brakes and swerve to the extent he did. His tires slipped on the wet brick pavement and did not take hold like they should. He was not able to stop before the collision, but his brakes were set and his speed was reduced to between 10 and 15 miles per hour at the time of impact. His car did not move over 1 or 2 feet after the impact, but came to a stop with the left side slightly over the center line of Second Street and with the front end about one foot east of the center line of Pearl Avenue. (There was no evidence that plaintiff's car was ever west of the center line of Pearl Avenue.) The marks made by his tires were plainly visible for 10 to 12 feet west of the west line of Pearl Avenue. After he applied the brakes he could feel the car sliding. The brakes finally took hold, but just for an instant. Defendant estimated his stopping distance at a speed of 20 to 25 miles per hour at approximately 30 or 40 feet, after the brakes were applied.

Defendant denied the statements attributed to him after the collision and testified that he may have said he didn't see plaintiff's car before it was in motion. He further said he reacted as quick as he could and tried to avoid the collision but it was impossible to do so because, apparently plaintiff pulled out directly in front of him. There was nothing to prevent plaintiff from seeing the approach of his car. The right front light, right fender, the radiator grille and hood of defendant's car was damaged.

Defendant introduced in evidence portions of the Joplin Traffic Code, designating Second Street as a through street, defining a 'through street,' fixing the speed limit at 25 miles per hour and right-of-way, as follows: 'Article VIII. Other Driving Regulations. Section 1. Right-of-way. (a) The driver of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection from a different roadway provided, however, there is no form of traffic control at such intersection. (b) The operator of a motor vehicle having stopped as required by this ordinance at the entrance to a through street or a stop intersection, shall yield the right-of-way to other vehicles which have entered said intersection from said through street, or which are approaching so closely on said through street as to constitute an immediate hazard.'

The appellant contends that 'the verdict of the jury is and was against the greater weight of the evidence, and all of the evidence, and that the verdict was for the wrong party and could not have been arrived at [by] any proper consideration of the evidence.' Respondent, on the other hand, contends that plaintiff was guilty of contributory negligence as a matter of law; that no case was made for a jury, and the errors complained of are immaterial. O'Dell v. Dean...